By Christopher B. Daly
Recently, the New York Times observed the 50th anniversary of the founding of the Black Panther Party, which took place in Oakland in October of 1966. In one of those historical twists, it is remarkable to recall that the Panthers built their reputation on their response to police harassment of black motorists. Panther members “patrolled” the streets of Oakland, on the lookout for routine police stops. Before those stops could escalate, the Panthers would roll up and pull out their own weapons (which were then legal to carry in California). With weapons in full view, they would then “observe” the police while they interacted with black citizens.
In its look back at the Panthers, the Times examines its own coverage of the movement and its leaders. It’s a worthy effort, but I believe the Times actually slights one of its own reporters – Earl Caldwell, a pioneer in the movement by African-American reporters and editors to desegregate the newsrooms of mainstream, white-owned newspapers and magazines.
In hopes of giving Caldwell his due, I present the following excerpt from my 2012 book Covering America: A Narrative History of a Nation’s Journalism. In my view, Caldwell did an exemplary job of not only covering the Panthers but also in standing up to the FBI, when the Bureau tried to pressure Caldwell into cooperating. His work is at the heart of the landmark 1972 Supreme Court ruling known as Branzburg, a case that lamentably drew the erroneous conclusion that American journalists have no constitutional right to protect their sources from the government.
Caldwell had grown up in Pennsylvania coal country and made his way into sportswriting, then approached the New York Times.
[From Covering America]
. . . The Times was famous for having plenty of black elevator operators, but when Caldwell started in March 1967, he was just the second black in a newsroom position at the Times (following Tom Johnson).
On his first day, Caldwell wore a Brooks Brothers suit and declared that he wanted to write like Gay Talese. For the first few weeks he did what most newly hired reporters did at the Times: cover New York City. On occasion, he served as something like a foreign correspondent, exploring Harlem for the Times’ white readers and describing the sights, sounds, and folkways of people who lived only a few blocks away. Once a Times editor asked Caldwell for James Baldwin’s telephone number, evidently assuming that all black people knew all other black people.
Soon, though, cities across America began erupting in race riots, and the Timestapped the new guy to help out, often teaming him with Gene Roberts, an experienced white reporter who was the paper’s chief Southern-based civil rights correspondent in the late 1960s.
In the spring of 1968, Caldwell traveled to Memphis to cover the strike being waged by the city’s sanitation workers, supported by the Reverend Martin Luther King Jr. Caldwell was in the Lorraine Motel on April 4 when a loud shot rang out.
New York Times reporter Earl Caldwell (at left) trails Rev. Martin Luther King Jr. up stairs in the courtyard of the Lorraine Motel in Memphis, shortly before King’s assassination on April 4, 1968. Caldwell was the only reporter in a position to provide an eyewitness account. (Photo: Memphis Commercial Appeal.)
The only journalist present at the scene, Caldwell immediately called the Timesnewsroom and began dictating details of the King assassination, which the editors spread across the top of page one. According to Caldwell, King had spent most of the day in his room, then emerged around 6 p.m. onto the balcony, wearing a black suit and a white shirt. Caldwell’s report continued:
Dr. King, an open-faced genial man, leaned over a green iron railing to chat with an associate. . . .
The Rev. Ralph W. Abernathy, perhaps Dr. King’s closest friend, was just about to come out of the motel room when the sudden loud noise burst out.
Dr. King toppled to the concrete second-floor walkway. Blood gushed from the right jaw and neck area. His necktie had been ripped off by the blast.
King’s murder touched off a fresh round of violence in cities across America, and Caldwell returned to the “riot beat” for much of the summer.
That fall, Caldwell went to San Francisco to become a West Coast correspondent for the Times. Through his contacts among the few black reporters in the Bay Area, he gained access to Black Power advocate Eldridge Cleaver, and by the end of 1968, Caldwell was the most knowledgeable reporter in the mainstream press about the emerging Black Panther Party, based across the bay in Oakland. As it turned out, the Panthers were shrewd enough about the media to want coverage in the New York Times, and they gave Caldwell access, as well as what reporters call “color” (atmospheric details), on-the-record interviews, just about anything he might want. His stories established that the Panthers were heavily armed and were talking about violent revolution. Caldwell worried about how Cleaver and the other Panthers would react to his reporting, but he didn’t need to. “The Panthers wanted people to know what they were doing. They wanted me to write in the paper about them having guns.”
His reporting also attracted the attention of the FBI, which was waging a nationwide campaign of surveillance and intimidation against radical groups both black and white. That attention would develop into one of the landmark Supreme Court rulings affecting reporters and their ability to protect confidential sources.
The legal case began when FBI agents paid a visit to Caldwell and told him that they wanted a lot more information about the Panthers. Caldwell told the agents that everything he knew was right there in the newspaper, including the fact that the Panthers were armed and that they were threatening to kill the president.
Even so, the government wanted more from Caldwell. He refused to talk, however, believing that any appearance in secret before a grand jury would make him look like an informant and dry up his sources. The agents were not satisfied, and the Bureau turned up the pressure, warning him that he would be forced to testify in court—a step that would not only destroy his relationship with the Black Panthers but jeopardize his value as a reporter on any other beat as well. Facing a possible court appearance, Caldwell destroyed most of his Panther files, but there was still the matter of his testimony. In February 1970 he was served with a subpoena ordering him to appear before a federal grand jury investigating the Black Panthers. The subpoena did not name the Times, but the newspaper hired a prestigious San Francisco law firm to represent Caldwell. Their advice: cooperate.
Hearing that, Caldwell tapped his network of black journalists, who steered him toward a Stanford law professor, Anthony Amsterdam, a brilliant defense lawyer, who agreed with Caldwell’s decision not to testify and offered to represent him pro bono. After he continued to refuse to testify about his news sources, Caldwell was found in contempt of court and ordered to jail, but he was allowed to remain free while his case went to the Ninth U.S. Circuit Court of Appeals. The higher court sided with Caldwell, but then the federal government appealed that ruling. En route to the U.S. Supreme Court, Caldwell’s case was combined with two others and filed under the heading Branzburg v. Hayes. Paul Branzburg was a reporter for the Louisville Courier-Journal who had been an eyewitness to a drug crime. (Thus he was not, strictly speaking, protecting a confidential source.) Paul Pappas was a television news photographer working for a TV station in New Bedford, Mass., who had gone to nearby Providence to cover the local Black Panthers chapter and spent several hours inside their headquarters. Like Caldwell, Branzburg and Pappas were both journalists who had been ordered to testify before grand juries; like Caldwell, they had refused on professional grounds.
In all three cases, the issue was not a classic instance of protecting the identity of a confidential source. It was more a matter of preserving the journalists’ access to sources, which would be destroyed if the people who were being reported on suspected that the reporters had cooperated with law enforcement. All three cases involved a constitutional claim that the First Amendment includes not only the right to publish (and withhold) information freely but also the right to gather news freely.
Recognizing the stakes, news executives threw their institutional weight behind Caldwell and the other reporters. Supporting briefs were filed by the Washington Post Company, the Chicago Tribune Company, the American Newspaper Publishers Association, the American Society of Newspaper Editors, the American Newspaper Guild, the Radio and Television News Directors Association, the Press Photographers Association, and the ACLU—along with affidavits from such respected journalists as Anthony Lukas, Walter Cronkite, and Marvin Kalb.
In a decision handed down on June 29, 1972, the Supreme Court narrowly ruled against the journalists. Writing for the 5–4 majority, Justice Byron White held that the First Amendment had to be balanced against the Fifth Amendment, which guarantees criminal defendants the right to have their cases presented to a grand jury before indictment. In his opinion White invoked the ancient legal doctrine that “the public . . . has a right to every man’s evidence.” The only exceptions, he said, are those instances in which the states have adopted laws specifically granting certain categories of people a legal privilege against having to testify.
Such a “testimonial privilege” might protect a wife from testifying about her husband, a doctor about a patient, or a priest about a penitent. In such cases, legislatures determined that some other social good was worth the cost of allowing the privileged category of people to avoid the grand jury. But, White said, the Court could not take seriously the idea “that it is better to write about crime than to do something about it.” If reporters know things that prosecutors want to find out, they must tell what they know. Besides, the justice wrote, if the Court created a special privilege for journalists, it would soon have to define who is (and is not) a journalist — a task that raised the specter of government licensing of journalists, which would be far more murky than determining who is a doctor or a priest. “Almost any author may quite accurately assert that he is contributing to the flow of information to the public,” White wrote, warning that just about anybody could claim to be a journalist of one variety or another. Finally, White observed that the U.S. attorney general had written a set of guidelines governing the issuance of subpoenas to reporters, which the high court thought ought to suffice for the bulk of cases. The majority opinion also included an invitation to legislatures to create a “testimonial privilege” for reporters, and many state legislatures went ahead and passed versions of what are known as “shield laws.”
In a brief concurring opinion, Justice Lewis Powell, though voting with the majority, very nearly came down on the other side. He warned prosecutors that “no harassment of newsmen will be tolerated,” and he wrote that if reporters feel they are being abused by overzealous prosecutors seeking the names of confidential sources, then those reporters should go to court and seek a protective order. “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct,” Powell wrote, saying it is up to the courts to handle such claims on a case-by-case basis. Nevertheless, his joining with the majority had the effect of denying journalists’ claims to a constitutional privilege.
Among the dissenters, Justice William O. Douglas wrote one of the most eloquent statements of press freedom in history. Having staked out a position as a First Amendment fundamentalist, Douglas saw the Caldwell and related cases in clear-cut terms. “My belief is that all of the ‘balancing’ was done by those who wrote the Bill of Rights,” he said, adding that “by casting the First Amendment in absolute terms, they repudiated timid, watered-down, emasculated versions of the First Amendment. . . .” The key to understanding the First Amendment, Douglas argued, is to recognize that it exists for the benefit of the American people as a whole. If the people are to govern themselves, they must have reliable, independent sources of information. “Effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination,” he wrote.
In Douglas’s view, the free press cases that come before the Court are not really about the press per se; they are about the rights of the American people, the ultimate sovereigns of our system. The press, which serves as the agent of its audience, is incidental to the greater purpose of self-government. Douglas continued:
The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring to fulfillment the public’s right to know. . . . There is no higher function performed under our constitutional regime. Its performance means that the press is often engaged in projects that bring anxiety and even fear to the bureaucracies, departments, or officials of government.
He concluded by warning that the Court’s majority opinion would reduce journalists to stenographers, and that without the right to protect confidential sources, “the reporter’s main function in American society will be to pass on to the public the press releases which the various departments of government issue.”
The majority, however, did not see it that way. As a result of the Court’s 5–4 ruling against the journalists, reporters and their sources have operated in legal jeopardy ever since, at least in federal courts. On the state level, the Branzburg ruling had the effect of spurring many legislatures around the country to enact shield laws to protect reporters in state courts, but Congress has steadfastly refused to recognize the same right on the federal level.
Ironically, the Branzburg ruling also had another impact: it dried up what was probably the FBI’s greatest source of information about the Black Panthers—the reporting that anybody could read in the pages of the New York Times. Of course, by the time Caldwell’s case was resolved, the Justice Department had lost much of its interest in the Black Panthers. Most of Caldwell’s contacts were in jail, in exile, or dead.
